Citation Nr: 0733730
Decision Date: 10/26/07 Archive Date: 11/07/07
DOCKET NO. 04-39 782 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
Entitlement to service connection for headaches.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
L. A. Rein, Associate Counsel
INTRODUCTION
The veteran had active military service from October 2002 to
August 2003.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a January 2004 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Pittsburgh, Pennsylvania.
FINDINGS OF FACT
1. The veteran's current headaches did not have their onset
in active service.
2. The veteran's current headaches were not a symptom of an
organic disease of the nervous system manifest to a degree of
10 percent or more disabling in the first year following the
veteran's separation from active service.
3. The veteran's current headaches are not related to his
active military service.
CONCLUSION OF LAW
The criteria for service connection for headaches have not
been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.303, 3.307, 3.309 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Service Connection
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the
showing of chronic disease in service, there is required a
combination of manifestations sufficient to identify the
disease entity and sufficient observation to establish
chronicity at the time. If chronicity in service is not
established, a showing of continuity of symptoms after
discharge is required to support the claim. 38 C.F.R. §
3.303(b).
Service incurrence of an organic disease of the nervous
system may be presumed if manifested to a compensable degree
(10 percent or more) within one year of the veteran's
discharge from active duty. 38 U.S.C.A. §§ 1101, 1112; 38
C.F.R. §§ 3.307, 3.309. Service connection may also be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d).
The veteran's service medical records (SMRs) are entirely
silent for any mention of headaches, trauma to the head, or
loss of consciousness.
Post-service medical records first reflect the veteran's
complaints of headaches during a September 2003 VA
examination. The veteran dated the onset of his chronic
headaches to November 2002 during training at Fort Jackson,
South Carolina where he had to go into the gas chamber. He
stated that about forty-eight hours after that exercise he
began to have continuous headaches on a daily basis involving
the frontal occipital area, which continue today. The
veteran indicated that he went to the dispensary in service
for his headaches where he was given Tylenol. Current
neurological examination was normal. The impression was
chronic headaches dating back to November 2002 while at Fort
Jackson, South Carolina. The examiner noted that the veteran
took Tylenol as needed, which only provided minimal relief.
The veteran's headaches, as described, were frontal and
occipital in nature and were worse in the morning. The Board
notes that during the examination, the veteran also described
falling down steps where he injured his back during service
in February 2003, but he never claimed that he sustained
trauma to his head as a result of the same fall.
A June 2004 VA outpatient record reflects that the veteran
reported falling down a flight of stairs in 2003, during
military service, where he claims to have hit the back of his
head and sustained a loss of consciousness. The veteran
complained of having posterior scalp headaches ever since
that accident. He described headaches that were located in
the back of his head, that were sharp, non-radiating, and
were about a 6 to 8 out of 10 in severity. With severe
headaches, he stated that he got right eye blurring, but no
syncope or nausea. On examination he had head and scalp
tenderness. The impression was chronic posterior headaches,
status post fall in 2003 - questionable post-concussion. An
MRI of the head was negative - stable.
An August 2004 VA outpatient record reflects that the veteran
was prescribed Naprosyn as needed for his headaches. He
continued to complain of pain on the right side of his skull,
but no longer had blurring in the right eye.
Considering the evidence in light of the above legal
authority, the Board finds that the record does not provide a
basis for establishing service connection for headaches.
Initially, the Board finds that although the veteran was
diagnosed with headaches in his first year post service, they
are not shown to be a symptom of an organic disease of the
nervous system objectively shown to be disabling to a degree
of 10 percent within the initial post-service year;
therefore, presumptive service connection is not for
application. See 38 C.F.R. §§ 3.307 and 3.309.
The Board also finds that the claim for service connection
for headaches on a direct basis also must fail. SMRs do not
show that the veteran had headaches during service, much less
that he had chronic headaches, and there is no persuasive
medical evidence that relates the veteran's current headaches
to his period of active military service.
In evaluating the evidence, the Board is required to assess
the credibility, and therefore the probative value, of
proffered evidence in the context of the record as a whole.
See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).
The Board acknowledges that the veteran is competent to give
evidence about what he experienced; for example, he is
competent to report that he had certain injuries during
service or that he experienced certain symptoms. See, e.g.,
Layno v. Brown, 6 Vet. App. 465 (1994). As a layman,
however, he is not competent to diagnose any medical disorder
or render an opinion as to the cause or etiology of any
current disorder because he does not have the requisite
medical expertise. See, e.g., See Routen v. Brown, 10 Vet.
App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet. App. 492
(1992). Competency must be distinguished from weight and
credibility, which are factual determinations going to the
probative value of the evidence. Rucker v. Brown, 10 Vet.
App. 67, 74 (1997).
In this case, the Board concludes that the veteran's
statements concerning his headaches are not credible evidence
of the incurrence of headaches during his active military
service, due to several discrepancies in his various
statements. Moreover, the veteran's statements are not
corroborated by his service medical records. During the
September 2003 VA examination, the veteran initially asserted
that he had headaches as a result of November 2002 military
training where he was exposed to a gas chamber. In the June
2004 VA outpatient record, however, he attributed the onset
of his headaches to a fall down a flight of stairs in which
he claimed to have hit the back of his head and lost
consciousness during service in 2003. Notably, when he
initially described his fall down the stairs during the
September 2003 VA examination, he only claimed that this
accident resulted in an injury to his back. Also, the
service medical records refer to the veteran's treatment for
back pain following a fall down a flight of stairs, but they
do not mention loss of consciousness or headaches, which, if
present, would likely have been recorded. Similarly, the
service medical records contain no reference to headaches
following a gas chamber exercise. In fact, they do not refer
to headaches at all, although the veteran states he was
treated for headaches in service. Also, during the September
2003 VA examination, the veteran described his chronic
headaches as frontal and occipital in nature; however, by
June 2004, he not only attributed his alleged chronic
headaches to a different incident in service, but he
described them as posterior in nature. In light of the above
contradictory statements provided by the veteran and with no
competent medical evidence to corroborate the history
provided, the Board finds the veteran's statements are not
credible and therefore of no probative value.
Consequently, the September 2003 and June 2004 medical
impressions based on the inaccurate history given by the
veteran are also of no probative value, Coburn v. Nicholson,
19 Vet. App. 427, 432 (2006) (reliance on a veteran's
statement renders a medical report incredible if the Board
rejects the statements of the veteran); cf. Kowalski v.
Nicholson, 19 Vet. App. 171, 179 (2005)( Board may not reject
a medical opinion solely on the rationale that it was based
on history given by the claimant, without first testing the
credibility of the history on which it was based). Medical
history provided by a veteran and recorded by an examiner
without additional enhancement or analysis is not competent
medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409
(1995). Also, the Board is not required to accept evidence
that is simply lay information recorded by a medical
examiner, unenhanced by medical opinion or analysis. Godfrey
v. Brown, 8 Vet. App. 113, 121 (1995).
In the absence of competent medical evidence linking the
veteran's headaches to service or any incident therein,
service connection for headaches must be denied.
In reaching this conclusion, the Board has considered the
benefit-of-the-doubt doctrine; however, as the preponderance
of the evidence is against the claim, the benefit of the
doubt is not for application. 38 U.S.C.A. § 5107; Gilbert v.
Derwinski, 1 Vet. App. 49, 54 (1990).
II. Duties to Notify and Assist
VA has certain duties to notify and to assist claimants
concerning the information and evidence needed to
substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103
and 5103A (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159 and
3.326(a). VA must notify the claimant (and his or her
representative, if any) of any information and evidence not
of record: (1) that is necessary to substantiate the claim;
(2) that VA will seek to provide; (3) and that the claimant
is expected to provide, and (4) VA must ask the claimant to
provide VA with any evidence in his or her possession that
pertains to the claim. 38 U.S.C. § 5103(a); 38 C.F.R. §
3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Dingess v. Nicholson, 19 Vet. App. 473 (2006), also held
that, as the degree of disability and effective date of the
disability are part of a claim for service connection, VA has
a duty to notify claimants of the evidence needed to prove
those parts of the claim. Notice should be provided to a
claimant before the initial unfavorable agency of original
jurisdiction decision on a claim. Pelegrini v. Principi, 18
Vet. App. 112 (2004).
Review of the claims folder reveals that compliance with the
duty to notify was accomplished by an August 2003 letter,
which was provided to the veteran before the initial
unfavorable rating decision was issued in January 2004. The
Board notes, however, that the veteran was not provided with
the specific elements of notice required by Dingess v.
Nicholson, 19 Vet. App. 473 (2006). In addition, the veteran
was not specifically requested to send VA whatever evidence
he had "in his possession" pertaining to his claim.
In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the
Federal Circuit held that any error by VA in providing the
notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. §
3.159(b)(1) is presumed prejudicial. In other words, VA has
the burden of rebutting this presumption by showing that the
error was not prejudicial to the veteran in that it does not
affect the essential fairness of the adjudication. To do
this, the VA must demonstrate: (1) that any defect was cured
by actual knowledge on the part of the claimant, (2) that a
reasonable person could be expected to understand from the
notice what was needed, or (3) that a benefit could not have
been awarded as a matter of law.
The Board finds that the presumption of prejudice for lack of
the Dingess notice has been rebutted in this case because
service connection has been denied; consequently, as a matter
of law, neither an effective date nor a disability evaluation
could be awarded for headaches. His veteran status is not at
issue. Additionally, the veteran was not prejudiced by not
including the phrase "in his possession" in the notice
letter. The language in the August 2003 letter was
sufficient to advise the veteran to submit pertinent evidence
he had in his possession to the VA. In fact, in response to
the August 2003 notice letter, the veteran submitted a VA
Form 21-4138 to the RO later that month stating that he did
not have any medical treatment records to submit at that time
and that all his treatment was performed while he was in the
military. Thus, the veteran has had a meaningful opportunity
to participate in the adjudication process, so he was not
prejudiced by any error in the notice letter. See Overton v.
Nicholson, 20 Vet. App. 427, 439-444 (2006) (failure to
provide timely notice is harmless if the claimant had a
meaningful opportunity to participate in the processing of
the claim).
VA has also complied with the duty to assist the claimant in
obtaining evidence to substantiate the claim for service
connection. The veteran's service medical records and VA
treatment records have been obtained, an examination has been
provided, and the veteran has been afforded an opportunity to
submit statements on his behalf, which he and his
representative have done. There are no additional pertinent
records that the veteran has reported that have not been
obtained.
For the reasons set forth above, and given the facts of this
case, the Board finds that no further notification or
assistance is necessary, and deciding the appeal at this time
is not prejudicial to the veteran.
ORDER
Service connection for headaches is denied.
____________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs